Question for Maxwell Edison...

American [i]law[/i] is not above judicial review. And there is no law that exempts itself from judicial review.

The U.S. Constitution is not law. It's a framework. It's what enumerates the powers which have been granted to the federal government by the people of sovereign states.

In theory, if government makes a law, the purpose of judicial review is to determine if the government (either federal or state) has the power to make and/or enforce said law under those powers enumerated in the Constitution.

http://en.wikipedia.org/wiki/Eighteenth_Amendment_to_the_United_States_Constitution

There are federal laws that prohibit the possession, sale, and consumption of marijuana. And I've actually heard people say - including, I might add, lawyers (which is extremely troubling to me) - that people don't have a Constitutional right to legally possess and consume marijuana.

But those people have it backwards. The question should be, show me in the constitution the article or amendment which grants to the federal government the power to say one cannot! Unless there's some article or amendment enumerated in the U.S. Constitution that grants to the federal government the power to prohibit such a thing, then such a law should be ruled as unconstitutional.

I'm neither a lawyer nor an activist for the legalization of marijuana, but if it required an amendment (the 18th) to the U.S. Constitution to grant the federal government the power to outlaw the sale and possession of liquor (intoxicating substances), then why shouldn't it take a similar amendment to give them similar power to make law regarding a similar substance?

The 18th amendment, by the way, was repealed by the passage of the 21st amendment fourteen years later.

This is an illustration as to why I think people misunderstand the real intent of the U.S. Constitution, and why I think its intent has been trampled upon. And I'm baffled as to why courts over the years have ruled as constitutional those laws which clearly are not!

to hear supreme court justices speak on that matter...
I wonder if the three-body problem of person-state-federation has to do with it?
The courts look to the practical, do they not? So what concerns could they be trying to address with those rulings?

I do wonder about the scope of the second amendment, I realize it may have been offensive to you when I've voiced it:
The wording "shall not be infringed" is unbounded... so what is the basis for the rules (that I in my foreign mind imagine must exist) that firearms may not be carried into certain places by just any citizen? Capitol, Supreme Court, Public Schools, The White House... I imagine there are those kinds of rules...

It was allegedly a "tax" bill, but the purpose of the Harrison Act of 1914 was to ban the importation and sale of opiates. There were racial overtones: "Negro Cocaine 'Fiends' Are New Southern Menace...".

You could only import, sell, or posses opiates for a business reason, and you had to buy a tax stamp. Since there was no legitimate business reason... Legal sleight of hand, not requiring Constitutional amendment. The Supremes, in United States v. Doremus, 249 U.S. 86 ruled the act constitutional.

how I thought it should be, too.
What's the deal then, when they write that the putting into action of the law is not subject to judicial review?
Are they relying on the courts not being able to act before the fact?
That'd make it a one-shot law, but aren't there limits to how many of those "planned repeal one-shots" the legislative/executive/judicial system can take?
I'd imagine it being - to the system, and to the public's perception of that system - a bit like a mild stroke or heart attack, each time, leaving further weakness and fear of death behind...

To our discourse in general: Let me say, that I have really enjoyed it when you've taken time to educate me on these matters, so far from my own sphere, your knowledge and your passion for sharing it is both impressive and commendable. I'm afraid I've been indoctrinated to always ask further questions, always probe the limits of what I am told.
I can see how that may be exasperating, especially since you did not sign up for that, specifically. I gotta put an EULA into my profile here ;)
Sorry about that, but thanks for all the info, in advance too.

Regarding the first half of your message, I don't understand the question.

Regarding the second half, thank you.

(By the way, it's 2:30 in the morning where I am, and I only got up for a drink of water - and to rid myself of the last! I'll reply as necessary later.)

..... why the United States is divided into 50 separate states? That's actually a question that's flawed, because it's not [i]divided[/i] into separate states.

The sovereign states came first, not the United States. Those sovereign states created the federal government, not the other way around. It was kind of like a club, and the framework of the U.S. Constitution was kind of like the club by-laws. As time went by, more sovereign states either joined the union or were formed out of occupied territory.

When the framework of the U.S. Constitution was formed, the things that the U.S. government [b]does not[/b] have the power to do would have been much too long to list. So the articles and subsequent amendments are actually a list of things it [b]may[/b] do. If something's not listed, the power lies in either the people or the sovereign state.

And it's this premise which leads me to believe that any sovereign state may, if its citizens wish, leave the union - i.e. quit the club.

So, do I understand this correctly: you're saying that it's not first and formost a compact between the citizens and their government, but between the states of the citizens and the government of the framework of states?
That does complicate matters. I seem to remember reading about the US constitution being ratified into the state constitutions, is that right? Does it serve to reduce the complexity?

by john.a.wills Feb 7, 2011

The first Constitution of the U.S. stated explicitly that "the Union shall be perpetual", so under it the states had no right to leave. The second Constitution has in its preamble the intention "to form a more perfect Union", so a fortiori states cannot legally leave now. President Lincoln pointed this out when 11 states did attempt to leave the Union. Furthermore, the second Constitution starts off "We, the people of the United States,", not "We the peoples of the United States,", still less "We, the rulers of the United States,". This Union is not a confederation of free states but a republic of free persons. Under the first Constitution one might say "These are the United States"; under the second we must say "This is the United States".

[i]..... the Union shall be perpetual .....[/i] or [i]..... to form a more perfect Union[/i] have no legal standing.

There is NO article in the constitution that prohibits a state from leaving, so it's therefore an implied right. Moreover, quite a few of the states, upon passing the legislation to ratify the U.S. Constitution and/or joining the union, actually made it a provision in their respective legislation that they reserved the right to leave.

Regarding Lincoln and the South, over time, slavery would have soon been abolished anyway, and the Confederate States would have rejoined the union. At least some historians believe as much. But no. Realizing it was an economic issue, not a slavery issue, Lincoln instigated war - a war that killed over 600,000 people from a population of about 30 million.

by oldbaritone Feb 8, 2011

Look up the word "federation" - by definition, the states had to exist first, or the federal government could not have been created.

And as for what the states can do within the framework of the constitution, look to the tenth amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

that they've used the "execution of this law shall not be subject to judicial review" before...
So I wonder why they bother, if it's not going to hold up, anyway?
As I've understood it, the courts can address a law through it's execution, ruling it out of play... but they cannot take a law that's not been executed yet... but given the complexities of the matter, this may be a misunderstanding on my part.
I can understand the normal way it goes, they pass a law, and then it turns out (in interpretation) that it steps over it's constitutional bonds or comes into a principle of government set down in the constitution.
But if a rubber stamp of "Not subject to judicial review" is obviously in conflict with principles of government already asserted, why on earth would they go through the motions of putting it there?

EDIT: Answer when you have the time, good night!

The courts look to the law, which has nothing to do with the practical.

"The Law" is humankind's best shot, codified.

With the exception, I hear, of some new bill pushed by -- I can't remember; Democrat or Republican, that would make blasphemy of that party a death offense.

by nicknielsen Feb 8, 2011

which party is sponsoring THAT bill. They both want it passed.

The events around the second attempt to resupply Fort Sumter in April 1861 definitely precipitated the war, but they most certainly did not instigate it. That war was 35 years in the making, and was ultimately a product of intransigence on both sides of the slavery debate.

One could consider the refusal to surrender Fort Sumter and Fort Pickens (Pensacola) to the respective seceded states an instigation to war, but to blame it on Lincoln is disingenuous at best. James Buchanan initially refused to turn the forts over and attempted to resupply Fort Sumter. After the resupply attempt failed, Buchanan took no further action, waiting for Lincoln to be sworn in. Lincoln, after a month in office, decided again to try to resupply Fort Sumter, and notified the governor of South Carolina that a supply ship containing no arms was en route. Yes, Lincoln would have known that in sending that ship, he would force the new Confederacy to take action. South Carolina chose to show its resolve by firing on the fort.

edit: correction, clarify

by tigger_two Feb 7, 2011

Santee, you are being a tool in this discussion. Stop it. You are better than this.

I fear that the difficulty in finding discussions around here is leading to this. The discussion has been one I have followed with interest and one I hope to see added to appropriately.

Santee, I love ya man. I don't see a value in the sidebar... and the new TR discussion form HATES sidebar stuff. I'm begging you- make it easier of old farts like me who are living in a state of perpetual confusion.

ETA: Lovely. My response was added in a place that insures that it makes VERY little sense.

*sigh*

Having decided to hang it up for the night, only to check one more last groggy time, to see you

Oh, well. I'll leave it for morning, after coffee.

That way, I am more in tune with the "reality" that you mentioned somewhere else around here.

by santeewelding Feb 8, 2011

Are you telling me that I am awry when I address pointless drift?

I -- probably you, too; as well as the principals here -- have at one time or another, and more again, immersed ourselves to some degree or other in the who, what, when, where, and why...how included...of our American Civil War.

So have luminaries of both older and contemporary literary and historical analysis. It continues. The corpus does nothing but grow.

Other than to strut, what else will be accomplished by those here?

Myself, I remain alert to the new and to the extraordinary. Explains why I haunt this place. So far as I saw, though, what was going on about the War was a rehash of the partial and imperfectly understood, compared of course to my own partial and imperfect understanding.

Yours needs be perfect in order to say what you did.

I could see this coming.

Yes, I am. If you don't like the way I drive, stay off the sidewalk.

I get to be the speed bump...again...

Impressive connection ;)
I'd have thought they'd have wanted to put the cocaine fiends on opiates, smoothe out their high with a nice mellow downer ... :p

That I have first-person experience with the one. Just once, mind. Enough for me to know how it is. Enough to know how you can go down that road without looking back.

by ansugisalas Feb 8, 2011

I decided not to pursue.

by nicknielsen Feb 8, 2011

Why confuse the masses with the differences between narcotics and stimulants? Drugs is drugs, and all drugs we disapprove of are 'narcotics'.